DECISION AND FINAL ORDER OF THE MADISON EQUAL OPPORTUNITIES COMMISSION ON
COMPLAINANT'S APPEAL OF ADMINISTRATIVE DISMISSAL

Case No. 3374

BACKGROUND

On September 13, 1996, the Complainant, Dwight A. Williams, filed a complaint
of discrimination with the Madison Equal Opportunities Commission (Commission).
The complaint charged that the Respondent, Millans Treasure Chest, denied him
the benefits of a public place of accommodation or amusement on the basis of his
race by treating him with deliberate indifference. If proven, this might
constitute a violation of Section 5(a) of the Madison Equal Opportunities
Ordinance, Mad. Gen. Ord. Sec. 3.23 et seq. (ordinance).

The complaint was assigned to a Commission Investigator/Conciliator for
completion of an investigation and issuance of an Initial Determination of
whether there is probable cause to believe that discrimination has occurred or
not. As part of the investigation process, the Investigator/Conciliator asked
each party questions in writing. On October 4, 1996, the
Investigator/Conciliator sent a letter requesting information from the
Complainant in the Dane County Jail where he was then resident. The letter was
returned without having been opened. Upon receipt of the returned letter, the
Investigator/Conciliator contacted officials at the Dane County Jail to
determine the status of the Complainant. She was told that the Complainant was
no longer at the facility. Because the Commission had no other means of
communicating with the Complainant, the Investigator/Conciliator held the letter
and waited for the Complainant to contact the Commission with a new address. The
Complainant did not contact the Commission and the Investigator/Conciliator
recommended the administrative dismissal of the complaint. On November 6, 1996,
the Commission's Executive Director signed the administrative dismissal.

The dismissal provided for a right of review if a request for review was
received within twenty (20) days of the issuance of the dismissal. The dismissal
was sent to the Complainant's last known address, that being the Dane County
Jail. On November 13, 1996, the Commission received the Complainant's appeal of
the dismissal of his complaint. The Commission considered the Complainant's
appeal on June 19, 1997. Participating in the Commission's consideration were
Commissioners: Fieber, Hands, Katsuma, Thomas, Turner, Vedder and Washington.

DECISION

The Commission is reluctant to dismiss a complaint unless there is evidence
that a complainant has failed to comply with the Commission's legitimate
requirements for the further processing of a complaint. In general, these
requirements are set forth in Rules 3.16 and 3.4 of the Rules of the Madison
Equal Opportunities Commission (the Rules).

In the present case, it appears to the Commission that the Complainant has
attempted to meet the Commission's requirements but that he was thwarted by some
confusion in the administrative staff of the Dane County Jail. It is clear that
despite the information given to the Investigator/Conciliator by an official at
the jail, that the Complainant was, in fact, still a resident at the time in
question. The fact that the Complainant received the Notice of Dismissal sent to
him at the Dane County Jail demonstrates that he was still actually a resident.
There is no indication that the Complainant was responsible for whatever problem
resulted in the return of his mail and provision of erroneous information
concerning his whereabouts.

Subsequent to the Complainant's receipt of the Notice of Dismissal, the
Complainant has responsibly kept in touch with the Commission. He has provided
timely notices of changes in his address and has filed other documents with the
Commission. These actions on the part of the Complainant demonstrate an interest
in the Commission's process and a willingness to follow that process within the
limits of his circumstances.

The Commission believes that not to reopen this matter would work a
substantial injustice on the Complainant. The Complainant has convincingly
demonstrated that his failure to respond to the Commission's inquiries resulted
from circumstances beyond his control. Given these circumstances, the Commission
will order that the complaint be reopened.

The Complainant has also filed motions seeking a default judgment against the
Respondent. It appears that the basis of these motions is the Respondent's
decision not to file material in opposition to the Complainant's appeal. The
Respondent is under no obligation to make such a filing. Granting of the
Complainant's motion would impose an obligation that does not exist. The
Complainant's motions cannot be granted.

ORDER

The above-captioned complaint is hereby reopened. Further, it is remanded to
the Investigator/Conciliator for completion of her investigation and issuance of
an Initial Determination.

On September 13, 1996, the Complainant, Dwight Williams, filed a complaint
with the Madison Equal Opportunities Commission (Commission). The complaint
charged that the Respondent, Millans Treasure Chest, discriminated against him
on the basis of race by treating him less favorably than those not of his race
in a public place of accommodation or amusement. The Respondent denied the
allegations of the complaint.

On or about November 7, 1996, the complaint was dismissed because the
Complainant failed to respond to correspondence from the
Investigator/Conciliator. The Complainant asserted that he had not received the
correspondence and requested that his complaint be reopened. After consideration
of the Complainant's request, the Commission, on September 3, 1997, ordered that
the complaint be reopened and remanded it to the Investigator/Conciliator for
further investigation and issuance of an Initial Determination.

On April 7, 1998, the Investigator issued an Initial Determination concluding
that there was no probable cause to believe that the Respondent had
discriminated against the Complainant on the basis of his race in provision of a
public place of accommodation or amusement. Essentially, the
Investigator/Conciliator determined that the Complainant was alleging
differential treatment not a total denial of service. The ordinance did not
proscribe differential treatment as opposed to total denial of service until
March of 1998, well after the filing of the Complainant's complaint.

The Complainant timely appealed the Initial Determination's conclusion that
there was no probable cause to the Hearing Examiner. On June 16, 1999, the
Hearing Examiner issued a Decision and Order on the Complainant's appeal
affirming the Initial Determination's finding of no probable cause.

The Complainant timely appealed the Hearing Examiner's Decision and Order.
After providing the parties with the opportunity to submit additional written
argument, the Commission considered the Complainant's appeal on January 13,
2000. Participating in the Commission's deliberations were Commissioners Hicks,
Morrison, Poulson, Rahman, Sentmanat, Tomlinson and Zipperer.

DECISION

After consideration of the record as a whole, the Commission adopts by
reference as if fully set forth herein, the Decision and Order of the Hearing
Examiner dated June 16, 1999. The Commission finds that the Hearing Examiner's
Decision and Order is fully supported in this record.

ORDER

The complaint is hereby dismissed.

Concurring in the Commission's decision are Commissioners Hicks, Morrison,
Poulson, Rahman, Sentmanat, Tomlinson and Zipperer. No Commissioners opposed the
Commission's action or abstained from it.